DATE: 20040521

DOCKET: C38640

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – STANISLAW BIGOS (Appellant)

BEFORE: MACPHERSON, CRONK and GILLESE JJ.A.

COUNSEL: Irwin Koziebrocki, for the appellant Roger A. Pinnock, for the respondent

HEARD: May 19, 2004

RELEASED ORALLY: May 19, 2004

On appeal from the conviction entered by Justice W.J. Blacklock on December 21, 2000 and the sentence imposed on April 30, 2001.

E N D O R S E M E N T

[1] The appellant originally challenged his conviction for unlawful confinement on two grounds. He abandoned the first ground, namely, that the verdict was unreasonable and not supported by the evidence. The second ground relates to the appellant’s motion for leave to introduce fresh evidence on appeal. The fresh evidence consists, in part, of a copy of the Petition for Divorce issued between the appellant and the complainant, which contains a claim by the complainant for exclusive possession and for the partition and sale of the matrimonial home.

[2] The complainant testified at trial that she did not want the matrimonial home and that if the appellant was released from jail, he could have the house. The appellant asserts that the fresh evidence puts the lie to this aspect of the complainant’s trial testimony and, because this was a case in which credibility was of critical importance, in the absence of the fresh evidence a miscarriage of justice may have occurred.

[3] In our view, the proposed fresh evidence does not satisfy the criteria for admissibility set out in R. v. Palmer (1980), 50 C.C.C. (2d) 193 (S.C.C.). Counsel for the appellant properly acknowledges that the fresh evidence may have been known to the appellant prior to trial and that, upon the exercise of due diligence, it may also have been available to the appellant’s trial counsel. We agree. Moreover, we are not persuaded that it would have affected the result at trial.

[4] Accordingly, the conviction appeal is dismissed. The appellant has abandoned his appeal against sentence.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”